A proposal that paves the way for small countries to delegate others to process patents for them has caused a flutter in public health circles.

The proposal is to come up for discussion at a Patent Cooperation Treaty (PCT) working group meeting that got under way on Monday at the World Intellectual Property Organisation (WIPO) headquarters in Geneva. India is expected to voice its objection to this attempt to amend a treaty regulation.

The move affects the sovereign rights of smaller countries who do not have the capacity to process their own patents, a senior government official told BusinessLine . Countries delegated to process a patent by a smaller country may not use the flexibilities that the Trade-related Intellectual Property Rights (TRIPS) Agreement allows developing countries in the interest of public health.

Besides, the WIPO-PCT meeting is not the right forum to discuss this, the official said, adding that the focus should instead be on “capacity building” so smaller countries can improve their patent processing abilities.

The PCT’s aim is to streamline the process for patent applicants in the 152-member countries under its umbrella. But the proposal to introduce a new Rule 50 bis in the PCT Regulations will compromise TRIPS flexibilities in terms of how the countries view patentability criteria and the scope of patentability, an intellectual property expert said.

It could affect Indian exports if smaller countries end up not using their TRIPS flexibilities and grant patents on products they would not have given otherwise, the expert added.

Patents give the innovator-patent holder 20 years’ exclusivity in manufacture and marketing; they are a point of contention in the pharmaceutical world. Public health workers apprehend that patents lead to monopolistic practices where medicines are priced beyond the reach of ordinary patients; innovators claim that high prices were required to recoup the cost of research.

In the interest of public health, the TRIPS agreement had allowed developing countries certain flexibilities; IP experts caution this could get compromised by the proposed amendment. The World Trade Organisation-administered TRIPS agreement requires patents to be granted to innovations that involve a new or inventive step, but leaves it to country laws to define the criteria.

Experts point out that developing countries were advised to apply rigorous patentability standards to exclude patents on naturally occurring micro-organisms, genes, plants, seeds, new uses and forms of existing pharmaceutical substances, among others. By applying such standards, a country could keep out low-quality patents that could block the entry of less-expensive medicines and access to affordable medicines.

But all this could change under the amendment: the examination of patent applications would be done as per the patentability criteria and practices of the delegated offices, who may not use TRIPS flexibilities, the expert cautioned. In fact, even the report of the UN Secretary-General’s High Level Panel on Access to Medicines (in September 2016) had recommended that WIPO strengthen the capacity of patent examiners at the national and regional levels to apply rigorous public health-sensitive patentability criteria.

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